U.S. v. Kelly

• Decision Date: 05 August 2008
• Docket Number: No. 06-4011.,06-4011.
• Citation: 535 F.3d 1229
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven J. KELLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

535 F.3d 1229

UNITED STATES of America, Plaintiff-Appellee, v. Steven J. KELLY, Defendant-Appellant.

No. 06-4011.

United States Court of Appeals, Tenth Circuit.

August 5, 2008.

Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack, Federal Public Defender, with him on the brief), Salt Lake City, Utah, for Defendant-Appellant.

Elizabethanne C. Stevens, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Before LUCERO, McKAY, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

A jury in the District of Utah convicted Steven J. Kelly of two drug-trafficking offenses involving methamphetamine, and the district court sentenced him to 210 months of imprisonment and 48 months of supervised release. Mr. Kelly now appeals the conviction, raising venue challenges concerning the sufficiency of the evidence and the jury instructions. He also asserts that the district court committed reversible error by failing to comply with the Court Reporter's Act, 28 U.S.C. § 753(b), which requires a verbatim recording of all open-court proceedings in criminal cases.

Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We hold the government established venue in the District of Utah by a preponderance of the evidence and the district court did not plainly err in charging the jury on venue. Furthermore, we conclude that the district court did not commit reversible error under the Court Reporter's Act because Mr. Kelly has failed to establish the requisite prejudice. Accordingly, we AFFIRM the conviction.

I. BACKGROUND

The Weber Morgan Narcotics Strike Force set up a controlled methamphetamine buy targeting Mr. Kelly after a confidential source identified him as a drug dealer. The agents arranged to purchase methamphetamine from Mr. Kelly at a local fast-food restaurant. At the meeting, an undercover agent met with Mr. Kelly and the informant. When the agent asked about consummating the drug deal, Mr. Kelly and the informant indicated the methamphetamine was under the napkin located in the middle of the table. The agent then put the drugs in his pocket and attempted to pay Mr. Kelly, but Mr. Kelly refused to accept the money. Instead, the informant took the money and placed it on the table. When the agent asked how to arrange future purchases, Mr. Kelly instructed him to go through the informant. The amount of methamphetamine involved in this transaction was subsequently determined by law enforcement to be 8.5 grams.

A few months later, while investigating a drug complaint, the same agents witnessed an individual, who was subsequently identified as Mr. Kelly, driving by on a motorcycle. The agents observed the motorcycle driver slow down as he passed a home where they were investigating a narcotics complaint. He made a U-turn and drove by a second time. The agents recalled hearing about a suspected drug dealer who delivered drugs on a motorcycle to this house. Thus, the agents attempted to pull the motorcycle driver over to talk to him, but the driver kept going. When the agents caught up with the driver, they observed him coasting on the shoulder of the road with his lights off and pulled him over for driving with no headlights. When the agents identified themselves, the driver attempted to get away, but his motorcycle stalled. At that point, the agent involved in the controlled drug purchase recognized the driver as Mr. Kelly and arrested him for the drug deal at the restaurant. The agents did not find drugs on Mr. Kelly or the motorcycle at the time, but when they returned to the area of arrest later that night they found a bag containing 45.8 grams of methamphetamine on the sidewalk. Mr. Kelly later admitted the drug package was his and also admitted he dealt drugs.

Mr. Kelly was charged in a two-count indictment with possession with intent to distribute five or more grams of methamphetamine (Count I) and distribution of five or more grams of methamphetamine (Count II), both in violation of 21 U.S.C. § 841(a)(1). Count I was based on the second incident involving the 45.8 grams. Count II was based on the earlier undercover drug deal involving the 8.5 grams.

Mr. Kelly pleaded not guilty and the case proceeded to trial. At the conclusion of the trial, defense counsel made a general motion for acquittal, which the district court denied. The district court imposed a sentence of 210 months of imprisonment and a 48-month term of supervised release. Mr. Kelly then brought this timely appeal.

II. DISCUSSION

A. Sufficiency of the Evidence on Venue

Mr. Kelly challenges his conviction, alleging that there was insufficient evidence for a reasonable jury to find that the two charged crimes occurred in the District of Utah. Mr. Kelly contends that the government presented "[n]o evidence to support a finding of the location" and therefore his conviction must be reversed for insufficient evidence. See Aplt. Br. at 4. We cannot agree.

Venue is a question of fact ordinarily decided by a jury. United States v. Miller, 111 F.3d 747, 749 (10th Cir.1997). Whether the government presented sufficient evidence to support a jury's finding on venue is a question of law. Id.; 2 Charles Alan Wright, Federal Practice & Procedure § 307, at 349 (3d ed. 2000) ("Whether there was sufficient evidence to justify a finding on venue is a question of law for the court."). In reviewing whether venue lies in a particular district, the standard of review is whether "viewing the evidence in the light most favorable to the Government and making all reasonable inferences and credibility choices in favor of the finder of fact, the Government proved by preponderance of direct or circumstantial evidence that the crimes charged occurred within the district." United States v. Rinke, 778 F.2d 581, 584 (10th Cir.1985). Our review is "quite deferential." United States v. Evans, 318 F.3d 1011, 1021 (10th Cir.2003).

Although venue is not the focal point in most criminal matters, it is "not a mere technicality." Miller, 111 F.3d at 749; see also United States v. Winship, 724 F.2d 1116, 1123 (5th Cir.1984) ("Appellants raise more than a pedantic, justice-defeating technicality in asserting venue related rights." (internal quotation marks and footnote omitted)). It is a constitutional consideration and an element of every crime. Miller, 111 F.3d at 749. Specifically, the U.S. Constitution, in Article III, Section 2, Clause 3, "requires that the trial of any crime be held in the state in which the crime was committed," and the Sixth Amendment "guarantees trial by a jury of the state and district in which the crime was committed." Id. (internal quotation marks omitted) (quoting United States v. Medina-Ramos, 834 F.2d 874, 875-76 (10th Cir.1987)). The Federal Rules of Criminal Procedure also address venue, providing for prosecution in the district where the offense occurred, unless a statute or other permissive procedure allows for another venue. See Fed.R.Crim.P. 18.

Even so, we have consistently approached venue differently than other "substantive" elements making up a criminal offense. Miller, 111 F.3d at 749. The critical distinction is the government need only establish venue by a preponderance of the evidence and not beyond a reasonable doubt. See United States v. Byrne, 171 F.3d 1231, 1234 (10th Cir.1999). Thus, in our review, we are mindful that venue is an element of every crime, while recognizing the separate evidentiary standards.

1. Preservation of Challenge to Venue

Before turning to the merits, the threshold question is whether Mr. Kelly's venue challenge is a proper subject of review. The government contends that Mr. Kelly waived his right to question venue and urges us to decline to review his challenge. On the other hand, Mr. Kelly vigorously contends that the record does not establish a waiver. We agree with Mr. Kelly.

A waiver of a constitutional right ordinarily must involve an intentional relinquishment or abandonment of a known right. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). However, we have "applied a more relaxed standard for finding a waiver of venue rights than for finding waiver of other constitutional rights in criminal trials." Miller, 111 F.3d at 750. Indeed, a defendant may "waive venue rights by his inaction." Id.; 2 Wright, supra, § 306, at 343 ("The courts [] have also found a waiver of venue from the inaction of defendant. The absence of an objection to venue, or a motion specifically raising the defect, has been held to constitute a waiver."). "[A] party that has waived a right is not entitled to appellate relief." United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 247, 166 L.Ed.2d 194 (2006); see also United States v. Carrasco-Salazar, 494 F.3d 1270, 1273 (10th Cir.2007) (holding, where challenge was waived, that appellate review is "precluded").¹

A defendant can waive improper venue when it is apparent on the face of the indictment that the case should have been tried in another jurisdiction, and yet the defendant allows the trial to proceed without objection. United States v. Jackson, 482 F.2d 1167, 1179 (10th Cir.1973); 2 Wright, supra, § 306, at 343-44. Here, the indictment alleged that Mr. Kelly committed the crimes in the District of Utah, the place where he was to be tried. Therefore, Mr. Kelly would not have been on notice by reviewing the indictment of the need to challenge venue. See Jenkins v. United States, 392 F.2d 303, 305-06 (10th Cir.1968) (noting, regarding a case tried in the District of Kansas, that the indictment "on its face ... is complete as to venue and each count asserts the offense was committed in Kansas" and that it "cannot thus be said that the defendant waived the objection he now asserts by going to trial under these circumstances"). Indeed, we discern nothing in the record...